On the date in question, Mr. Nimphius went door-to-door through the Village seeking signatures for political nominating petitions.
*fn2"
No one answered his ring at the Perillo residence when Mr. Nimphius visited early in the day, so he returned at around 8 p.m. and rang the bell several times.

Jennifer Perillo, the fourteen year-old daughter of the owners, was home on both occasions, but she did not answer the door. At the time of the evening visit, she called the Village police and reported that a man who had been at her house earlier that day again was at her door and that she "was nervous about his activities." (Perillo Dep. Ex. K) Ms. Perillo related further that the visitor had parked a blue car in front of her house and opened its hood.

Village Police Officers Panaro, Gaul, Orifici, and Carpenter, all of whom are named as defendants in this suit, responded to Ms. Perillo's call. Mr. Nimphius, oblivious to the impending arrival of the police, drove away from the Perillo home and stopped on another street, again opening the hood of his car. When the police arrived at the Perillo residence, they found that the unidentified caller had departed, so Officer Gaul left to look for him on other streets. When he happened upon a blue car with its hood open, he correctly surmised that it belonged to the individual who had been the subject of Ms. Perillo's call. Officer Gaul claims that as he came upon the scene, Mr. Nimphius was walking away from the front door of a house on the street on which he was then parked. (Gaul Dep. Ex. H 10; Ex. 22)

Although there is no meaningful dispute over the facts up to this point, the parties' versions of events diverge markedly beginning with the first interaction between Mr. Nimphius and the Village police. Defendants claim that "plaintiff vehemently refused to respond, began shouting and caused a disturbance" in response to Officer Gaul's attempted questioning. (Def. Mem. 3; Panaro Dep. Ex. G 11-12; Gaul Dep. Ex. H 18; Carpenter Dep. Ex. I 12)
*fn3"
Plaintiff claims that "although [he] berated the defendant police officers as uneducated ignoramuses, he did [ sic ] neither shouted nor caused a disturbance." (Pl. Mem. 4-5) In his deposition, he stated "there were no loud voices and . . . there was no collection of people in the neighborhood" as a result of his interaction with the police. (Ex. 5, 32-33) He claims also that he informed the officers that they had no right to interfere with his political activities.

Whatever transpired between Mr. Nimphius and the police, it is undisputed that at some point the officers informed Mr. Nimphius that he was violating the Village's prohibitions on disorderly conduct and soliciting without a permit. (Panaro Dep. Ex. G 21) Mr. Nimphius eventually was placed under arrest and brought to Village police headquarters, where he was detained for approximately one hour while he was issued appearance tickets for disorderly conduct and soliciting without a permit. Plaintiff never was searched, placed into a cell, handcuffed, photographed, or fingerprinted. Plaintiff alleges that his briefcase and car were searched by the police during his detention, and defendants have not denied that such a search might have occurred.

On October 2, 1995, plaintiff brought this suit alleging that his civil rights were violated under color of state law in contravention of 42 U.S.C. § 1983. In addition to the Village, the complaint names Officers Orifici, Gaul, Panaro, and Carpenter as defendants in their official and personal capacities. The Court later granted leave to amend the complaint to add Officer Lenci as a defendant.

Despite the inartful pleading, it is possible to discern the claims made by Mr. Nimphius. He alleges that (1) his arrest violated his rights under the First and Fourteenth Amendments; (2) his arrest for activities which others undertook with no response from the police denied him the equal protection of the law; and (3) he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments.
*fn4"
Defendants seek summary judgment dismissing all of plaintiff's claims on the ground that there was no violation of his rights. Defendants argue also that plaintiff has not made allegations sufficient to subject the Village to liability and that the individual defendants are entitled to qualified immunity from all of plaintiff's claims.

"In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be prescribed by a properly drawn statute, and whether or not he applied for a license." Freedman v. Maryland, 380 U.S. 51, 56, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965).
*fn6"

There can be no serious dispute that solicitation is a form of speech protected by the First Amendment.
*fn7"
As the ordinance gives the Chief of Police discretion to deny an applicant the right to solicit in the Village, Mr. Nimphius has standing to bring a facial challenge to the constitutionality of the ordinance.

The issue presented by the permit-granting authority conferred by the Village on its Chief of Police is not novel:

"Many decisions of [the Supreme] Court over the last [50] years [have held] that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969).
*fn8"

The Village ordinance grants discretion to the Chief of Police, both in investigating applications and in approving the issuance of permits. It lacks, however, any "narrow, objective and definite standards" to guide the discretion of the licensing authority. Under the Village ordinance, the Chief may not refuse a permit unless he determines that a denial is necessary to carry out one of the express purposes of the statute.
*fn9"
However, it is the Chief's subjective determination of what is necessary that serves as the only limit on his power. As the statute is written, the Chief can prevent expression based solely on what he thinks will be the effect of the proposed expression. His discretion is not restrained by meaningful, objective standards.

In Shuttlesworth, the Court held such limitations on discretion insufficient. There the statute required the issuance of a permit unless in the judgment of the issuing body "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Shuttlesworth, 394 U.S. at 149-50. The Court held that these standards did not sufficiently limit the discretion of the permit granting body. "For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.'" Id. at 150.

"it enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege can not be made a substitute for the duty to maintain order in connection with the exercise of the right." Id. at 515 (opinion of Roberts, J.) (plurality); see also Schneider, 308 U.S. at 163-64 (power to refuse permits only if applicant "is not of good character or is canvassing for a project not free from fraud" not a valid limit on officer's discretion).

The purposes stated in the Village ordinance all are so broad that they provide no meaningful standards to reign in the Chief's discretion. The ordinance allows the Chief to inquire into any issue he thinks is relevant, and to determine what he thinks is necessary to preserve the "good order" of the community or to protect the residents from "annoyance." Because any solicitation might cause annoyance, the Chief could suppress any proposed solicitation on that basis, even if actually motivated by a desire to censor content. The standards limiting official discretion in Hague and Shuttlesworth were more definite, objectively determinable and significant than those in the Village ordinance, yet they were held to be constitutionally insufficient.

Like the regulation invalidated in Riley, the Village ordinance at issue here prescribes no time limit for the consideration of an application. Nor is there a provision allowing solicitation while the application is pending. Consistent with the ordinance, the Chief simply could neglect to act on an application for an indefinite period. Such a delay effectively could silence a solicitor like Mr. Nimphius, whose effort to qualify candidates for an election was time-sensitive. Thus, the absence of any time limit for a decision on applications further demonstrates the unconstitutionality of the Village solicitation ordinance.

C. Prohibition on All Solicitation in the Village Streets

Subsection 5 of the solicitation ordinance makes it unlawful to "solicit pedestrians passing along the streets of the Village." It is a clear, outright ban on any solicitation in the Village streets.

Although the plaintiff was not arrested for soliciting in the streets of the Village, and so this aspect of the ordinance was not applied to him, another exception to the rule of as-applied review exists where a plaintiff alleges that a statute is overbroad. Maryland v. Joseph Munson Inc., 467 U.S. 947, 958, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984). Plaintiff thus has standing to challenge the ordinance on its face on the ground of overbreadth even though he did not engage in the prohibited conduct.

In the context of an overbreadth challenge, a law is facially invalid if it "does not aim specifically at evils within the allowable area of control . . . but sweeps within its ambit other activities" which are protected by the First Amendment. Thornhill, 310 U.S. 88, 97, 60 S. Ct. 736, 84 L. Ed. 1093. Such overbreadth "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830. The legitimate sweep of a statute depends upon: (1) the restrictions that the statute places on the content of expression, and (2) the expressive fora that it regulates. Restrictions that target categories of speech on the basis of their content cause a statute to be subjected to an especially demanding standard of review, while those that regulate the time, place and manner of speech without regard to its content are far more likely to be upheld.

The Supreme Court's "cases have recognized that the standards by which limitations on speech must be evaluated 'differ depending on the character of the property at issue.'" Frisby v. Schultz, 487 U.S. 474, 479, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988) (quoting Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 44, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983)). Three types of fora have been identified: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Subsection 5 of the solicitation ordinance is an outright ban on the solicitation of pedestrians on the Village's streets. The Supreme Court has "repeatedly referred to public streets as the archetype of a traditional public forum." Frisby, 487 U.S. at 481; see Perry, 460 U.S. at 45; Hague, 307 U.S. at 515 (opinion of Roberts, J.) (plurality).

As a law which restricts speech in a public forum, the Village ordinance must be tested under a heightened level of judicial scrutiny.
*fn11"
The Court has stated that:

"in these quintessential public fora, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry, 460 U.S. at 45. (citations omitted).

The interest that the Village ordinance is said to serve -- that the "residents may be protected from annoyance, including, among other things, unwelcome interference with their privacy, with their rest, and with the enjoyment of their homes" -- in various formulations has been recognized as a legitimate government interest. Frisby, 487 U.S. at 484 ("'The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.'") (quoting Carey v. Brown, 447 U.S. 455, 471, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980)); Schaumburg, 444 U.S. at 636; Hynes, 425 U.S. at 616-20. However, "the Village's legitimate interest[s] can be better served by measures less intrusive than a direct prohibition on solicitation." Schaumburg, 444 U.S. 620, 637, 63 L. Ed. 2d 73, 100 S. Ct. 826. Banning solicitation on the streets probably helps maintain the good order of the Village and keep the residents free from annoyance, but it also dramatically curtails outdoor public expression on any topic. As an alternative, the Village could ban solicitation after certain hours or require that solicitors not harass passers-by in order to preserve privacy and prevent annoyance. The outright ban on all solicitation in the Village streets is manifestly not a narrowly tailored attempt to achieve a legitimate government interest. Indeed, a number of cases have found far narrower restrictions on expression based on similar governmental purposes to be substantially overbroad. See, e.g. Riley, 487 U.S. 781 at 800-01, 101 L. Ed. 2d 669, 108 S. Ct. 2667; Schaumberg, 444 U.S. at 637; Thomas v. Collins, 323 U.S. 516, 538, 89 L. Ed. 430, 65 S. Ct. 315 (1945); Jamison v. Texas, 318 U.S. 413, 417, 87 L. Ed. 869, 63 S. Ct. 669 (1943); Lovell, 303 U.S. at 451. This Court holds the solicitation ordinance unconstitutional for substantial overbreadth.

D. Vagueness

Subsection 3 of the ordinance makes it unlawful to continue to solicit at a public place, church or residence "where such solicitation is objected to, and upon being told of or otherwise ascertaining such objection." The ordinance provides no further insight into what qualifies as an objection under Subsection 3. The Court finds this section of the ordinance unconstitutionally vague.

Mr. Nimphius has standing to challenge this provision of the soliciting ordinance because he specifically was charged with soliciting "where said solicitation is objected to, and did also refuse to peaceably depart after such objection was made" in violation of the statute. (Ex. 1)

A statute is unconstitutionally vague when persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926); see Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620-23, 48 L. Ed. 2d 243, 96 S. Ct. 1755 (1976) (ordinance banning neighborhood solicitation void for vagueness). The Village ordinance is such a statute.

This vagueness becomes clear when one considers how this provision of the ordinance might be enforced. An "objection" under the ordinance might take a number of forms which could be used to limit protected speech. For example, in response to a speech on the steps of Village Hall criticizing the management of the Village, the Mayor might note that he "objected" to his characterization by the speaker. If the speaker pressed his point even after this "objection," he could be in violation of the terms of the statute. Moreover, a passer-by could "object" to the content, but not the manner, of a solicitation on a city street and, if the solicitor continued espousing his or her message, he or she could be found in violation of the ordinance.

By employing, without defining, a term like "objection," the Village ordinance forces people to guess, at their peril, whether certain public reactions to their expression would be regarded as "objections" in the meaning of the statute. A statute which made illegal "any public discourse with which another person verbally disagrees" would undoubtedly be overbroad. Yet nothing in the ordinance precludes its being enforced in this manner. Because the phrase in question is of indeterminate meaning, and that indeterminacy might cause the suppression of protected speech, the ordinance is void for vagueness.

In consequence, defendants' motion for summary judgment on plaintiff's claim that his First Amendment rights were violated under color of state law is denied on each of the independent grounds discussed above.

2. Disorderly Conduct Ordinance

Plaintiff claims in his memorandum that "the ordinances under the color of which the foregoing events took place are unconstitutional." (Pl. Mem. 7) He thus appears to claim that both the soliciting and the disorderly conduct ordinances are unconstitutional. The complaint, however, alleges only that "that the Village ordinance Sect. 25 [the solicitation ordinance] were [ sic ] written and intended to harass citizens with legitimate purposes." (Cpt. P 13) It is devoid of any claim that the disorderly conduct ordinance is unconstitutional. Nor has plaintiff sought to amend the complaint to add this claim. Defendants, quite justifiably, have not presented any argument regarding the constitutionality of the disorderly conduct statute. More remarkably, neither has the plaintiff, outside of the conclusory assertion in his memorandum that the statute is unconstitutional. To the extent that plaintiff actually is alleging such unconstitutionality, it is thus not properly before the Court.

Defendants move for summary judgement on these claims. The Court may grant a motion for summary judgment only if no material issue of fact exists after "viewing the evidence in the light most favorable to the party opposing the motion, drawing all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party." Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995).

1. Selective Enforcement

Plaintiff claims that the Village has a policy of using its ordinances to limit the First Amendment rights of solicitors for minor political parties. (Cpt. PP 11, 13) In an attempt to satisfy the first LeClair requirement, plaintiff points to evidence which suggests that at least twelve solicitors for the Democratic and Republican parties obtained signatures on political petitions around the time of plaintiff's arrest. He alleges that none of these solicitors had a permit, yet none was arrested for soliciting without a permit. (Pl. 3(g) P 13, Pl. Ex. 13; Pl. Ex. 16) However, plaintiff does not present direct evidence that the Village knew that persons were soliciting on behalf of major parties without permits, despite the fact that such knowledge is a prerequisite to the sort of selective enforcement claim brought here. See Shumway v. United Parcel Service, 112 F.3d 1413, 1997 WL 365465 at *5 (2d Cir. 1997) (upholding summary judgement because "it is impossible to demonstrate that UPS treated similarly situated males differently when there is not evidence that UPS knew about any other violations of the 'no fraternization' rule"). Thus, a question arises whether "the moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

As regards the second LeClair requirement, plaintiff alleges that his arrest was part of an attempt to restrict the exercise of his First Amendment right to freedom of expression. The Village presents nothing to rebut this claim, and instead argues that plaintiff must allege that he is a member of a protected class to state an equal protection violation. Plaintiff's allegation thus satisfies the second LeClair requirement.

Defendants' motion for summary judgment on this claim is denied.

2. The Arrest

Plaintiff's second equal protection claim is that the officers subjected him to a far more invasive and restricting procedure than normally would be used to deal with a violation of the solicitation and/or disorderly conduct ordinances when they actually arrested plaintiff. He alleges that the Village police usually would not arrest a person charged with the same crimes that he allegedly committed, nor would they have detained him or subjected him to various searches, but did so in his case "because of his political activities." (Pl. 3(g) P 4) The defendants maintain that if plaintiff had not created a disturbance, he never would have been arrested, detained, or searched.

Mr. Nimphius claims that the defendants violated his Fourth Amendment rights under color of state law by arresting him for disorderly conduct absent probable cause. The defendants move for summary judgment on this claim, arguing that Mr. Nimphius' behavior provided the arresting officers with sufficient cause for his arrest.

The Village disorderly conduct statute provides that:

"It shall be unlawful for any person to engage in noisy, riotous or tumultuous conduct or language, disturbing or tending to disturb the peace and quiet of the Village or any meeting or assembly therein, or to incite, or aid in any riotous, tumultuous assemblage, in or on any private property or streets or the doorways or staircases adjacent thereto." (Def. Mem. 15)

Defendants argue that:

"the testimony of the officer defendants established that the plaintiff refused to comply with the officers' order that the plaintiff leave the area and obtain the necessary permit. The testimony further demonstrates that plaintiff instead chose to stay at the scene to argue with the defendants displaying conduct which posed a substantial risk of a breach of the peace, and plaintiff even consented to the arrest when he raised his two hands and told Officer Panaro to arrest him.

"There is ample evidence in the record to establish that shouting and pointing his finger in a threatening manner in the officers' faces [ sic ] . . . and consequently there was probable cause for his arrest." (Def. Mem. 15-16)

Defendants' sole argument, in essence, is that on their version of the facts there was ample cause to arrest the plaintiff for disorderly conduct. Mr. Nimphius, however, has denied that he caused any sort of disturbance. He maintains that "although [he] berated the defendant police officers as uneducated ignoramuses, he did [ sic ] neither shouted nor caused a disturbance" (Pl. Mem. 4-5) and denies that anyone raised their voice or that a crowd gathered. (Nimphius Dep. Ex. 6, 32-33) This Court may not resolve disputes of fact on this motion and must draw all reasonable inferences in favor of the non-moving party. Vann, 72 F.3d at 1048-49. Thus, the Court assumes that Mr. Nimphius never shouted or raised his voice before he was arrested, although he did refer to the defendant officers as ignoramuses.

In this federal civil rights action, the Court looks to the probable cause standard found in the Fourth Amendment of the United States Constitution. Probable cause is not an especially demanding standard and is established "when the arresting officer has 'knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (quoting Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)). Nevertheless, it borders on the absurd to claim that Mr. Nimphius' version of his behavior would constitute probable cause to believe that he was violating the disorderly conduct ordinance. Calling a group of police officers ignoramuses is not polite, or even advisable, but it is nothing like the conduct prohibited by the Village ordinance. The motion for summary judgment on this claim is frivolous and is denied.

Under Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), a municipality "may not be held liable under § 1983 simply for isolated unconstitutional acts of its employees." Sorlucco v. New York City Police Department, 971 F.2d 864, 871 (2d Cir. 1992) (citing Monell). In order to establish such liability, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy.
*fn15"
Such a municipal policy, of course, may be established by showing that it is explicitly stated in a legislative or administrative enactment of the municipality's policy-making authority. A plaintiff may establish municipal liability also by showing that the violation was "visited pursuant to governmental 'custom' even though such custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 691.

A municipal custom may be proved through circumstantial proof, such as evidence that the municipality failed to train its employees to such a degree as to display a deliberate indifference to the constitutional rights of those within its jurisdiction or evidence that it had notice of, but failed to investigate, charges that its agents had persistently violated the civil rights of citizens. Sorlucco, 971 F.2d at 870. A simple assertion of a municipal policy or custom is insufficient without allegations of fact which at least circumstantially support an inference that such a policy exists. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Moreover, it is clear that "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Ricciuti v. New York City Transit Authority, 941 F.2d 119, 122 (2d Cir. 1991) (citing City of Canton v. Harris, 489 U.S. 378, 387, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)).
*fn16"
The discriminatory practices alleged must be "permanent and well settled" in order to subject a municipality to liability. Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

A. Arrest Under an Unconstitutional Statute

It is almost self-evident that plaintiff's claim against the Village for his arrest under an unconstitutional statute supports municipal liability under Monell. The statute in question is undoubtedly a municipal policy that was promulgated by the highest decision making authority of the Village. "Local governing bodies can be sued directly under § 1983 for monetary, declaratory or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690. Thus, the Village will be liable for any damages plaintiff proves were caused by his arrest under the solicitation statute.

B. Equal Protection and Fourth Amendment Claims

Plaintiff's equal protection and Fourth Amendment claims rely on the same legal theory and factual allegations to establish municipal liability. Both allege that the Village had a policy of discriminating against minor parties and that plaintiff's arrest and the enforcement of the solicitation ordinance against him were manifestations of this policy. Plaintiff, however, fails to point to any statement, formal or informal, by any policy-making body or official of the Village reflecting establishment of the alleged policy. Thus, plaintiff is alleging an informal custom of discrimination and is attempting to prove its existence by pointing to the actions of Village employees below the policy-making level. Moreover, he points to no other incident in which a minor party solicitor was arrested, or even approached, by Village police and presents no other evidence of a custom.
*fn17"
His argument is that a single action by municipal employees below the policy-making level demonstrates a custom. A single, isolated incident alleged in a complaint. however, does not suffice to show a municipal custom. City of Canton, 489 U.S. at 387; Ricciuti. 941 F.2d at 122. Plaintiff fails to allege facts which would establish a common and well settled custom that fairly represents municipal policy.

Defendant's motion for summary judgement is granted insofar as it seeks dismissal of these claims against the Village and the individual defendants in their official capacities.

V. Liability of the Individual Defendants

Defendants seek dismissal of all of plaintiff's claims against the individual defendants on the ground that they are entitled to qualified immunity.

In determining whether a right was clearly established at the time a defendant acted, a court must consider (1) whether the right in question was defined with "reasonable specificity,' (2) whether decisional law of the Supreme Court and this Circuit court support the existence of the right in question, and (3) whether under preexisting law a reasonable defendant official would have understood that his or her actions were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 118 L. Ed. 2d 211, 112 S. Ct. 1565 (1992). If the federal right that plaintiff claims was violated is found to have been clearly established at the time the defendant acted, a defendant is entitled to qualified immunity only if he or she can prove the objective reasonableness of his or her actions.

The fact that defendants violated well-established rights does not end the qualified immunity inquiry, however. Defendants nevertheless may be entitled to qualified immunity because:

"Even where the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights . . . . In such a case, the defense will turn on the particular facts, and summary judgment will be appropriate only if the defendant 'adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, the plaintiffs, conclude that it was objectively unreasonable for the defendant[]' to believe that he was acting in a fashion that did not violate an established federally protected right." Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir. 1993) (quoting Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 189 (D.C. Cir. 1986) (Scalia, J., sitting by designation) (internal citations omitted)).

The reasonableness of defendants' actions in arresting plaintiff under the Village soliciting ordinance presents a difficult question. There is great appeal to the argument that a police officer who enforces a duly enacted statute should be protected by qualified immunity as a matter of law. The essence of a police officer's duty is to carry out the laws of his or her jurisdiction, and officers' duties generally are not held to include legal scholarship. Because an officer ordinarily has the right to rely on the existence of a particular statute, it seems fair to hold that when a police officer enforces a statute, the officer is entitled to believe that he or she is not violating the constitutional rights of the arrestee unless a court previously has ruled on the very statute at issue. Any other rule would require a police officer to make an independent judgment as to the constitutionality of every statute he or she is empowered to enforce. Moreover, in cases such as this, Monell liability will be available against the Village for any compensatory damages the plaintiff seeks, and thus the rule would not preclude recovery.

However, for the purposes of determining qualified immunity, the Supreme Court has indicated clearly that a police officer generally is charged with knowledge of the law governing his or her office. In this case, the law made it clear that the Village ordinance violated the First Amendment. Enforcement of the ordinance in the light of substantial precedent establishing its invalidity at least arguably was unreasonable. Because they are unable to establish the absence of an issue of fact as to the objective legal reasonableness of their actions, defendants are not entitled to qualified immunity on this claim.

B. Equal Protection Claims

Plaintiff claims that he was denied equal protection because the Village ordinances were applied selectively to him in order to limit the exercise of his right to expression. A person's right to be free from selective prosecution is supported by substantial precedent in the Supreme Court and Second Circuit. See, e.g. LeClair, 627 F.2d at 610; see also note 12, supra, (citing cases). Thus, defendants are entitled to qualified immunity only if their actions were objectively reasonable.

As the Court has explained above, there is a factual dispute regarding Mr. Nimphius' behavior on the date of his arrest. If Mr. Nimphius can establish at trial that he was behaving in a peaceable manner, a jury would be justified in finding that the defendants lacked qualified immunity because their actions in arresting plaintiff for disorderly conduct were objectively unreasonable. See Frank, 1 F.3d at 1328. Defendants' motion therefore is denied as to this claim.

Conclusion

For the reasons expressed above, defendants' motion for summary judgment is granted insofar as it seeks dismissal of plaintiff's claims that the Village and the individual defendants in their official capacities violated his rights under the Equal Protection Clause and arrested plaintiff without probable cause in violation of the Fourth and Fourteenth Amendments. It is denied in all other respects.

SO ORDERED.

Dated: July 31, 1997

Lewis A. Kaplan

United States District Judge

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